Question

I am in the process of building a house. Recently I had a problem with a painter. He was given a specific color to paint the doorframes in order to match the color of the doors we had ordered. After he painted the doorframes, the builder installed the doors. When I came to inspect, I saw that the painter did not follow instructions and he painted the doorframes the wrong color. In order to rectify the situation it was necessary to remove the frames, repaint them and reinstall them. The builder asked for an additional payment for uninstalling and reinstalling the doorframes. Can I force the painter to foot the bill? I asked a friend who studied Choshen Mishpot and he said he thought that this depends on a dispute between the Rambam and Ra’avad concerning a girl who broke the engagement after the groom incurred customary expenses which went down the drain due to her action. Is he correct?

Answer

First let us classify what your painter did. The one who needs proper doorframes is you and since you are the one who has a relationship with the builder, you were the one who needed to pay for rectifying the problem. The painter did not install or uninstall the doorframes, so he did not do anything directly concerning this expense. Rather, by painting the frames the wrong color, the painter caused you an additional expense. Therefore the damages done by the painter were of a causative nature.

We know that there are two types of causative damages: those that are classified as gromo for which one is not liable, and those which are garmi for which one is liable. We should mention again that even those which are gromo and for which one is not liable, one is generally chayav to pay in dinei Shomayim, and one should pay debts for which he is liable in dinei Shomayim even if they are not enforceable in earthly botei din. The Meirei goes so far as to rule that one who does not pay is posul to be a witness.

In determining whether the damages of the painter are classified as garmi, it is important to be aware of the building process. If the painter knew that no one will be inspecting the doorframes to see if they were painted the correct color before the builder installs them, and that he was being relied upon to paint them the correct color, then the damages he caused are classified as garmi. This is similar to the case in the Gemara (Bovo Kama 99B) of one who showed a coin to an expert in counterfeit coins and asked if the coin was counterfeit in order to decide whether to accept the coin as payment for a sale. The Gemara rules that if it is clear that the seller was depending on the expert’s guidance then the expert is liable if he gave bad advice.

While it is true that in your case the painter did not say anything to the builder, nevertheless, his actions are tantamount to having told him that it was ok, since he knew that the builder was not aware of the color of the doors and no one else would be inspecting the frames prior to their installation.

This is similar to an explanation of the Nesivos (232, 7) in a case that was discussed in the Gemoro (Bava Metsiyo 42B). In the case in the Gemara, a guardian for orphans purchased cattle on their behalf from a cattle dealer and gave them to a shepherd. The animal did not have teeth and died of starvation. The Shulchan Aruch (Choshen Mishpot 232, 18) says the shepherd is liable for failing to realize that the animal wasn’t eating due to its lack of teeth. As such he is liable for the entire amount that the guardian paid for the animal since he could no longer return it to the seller. The Nesivos explains that the reason he is liable to such a great extent is because the dealer and guardian relied on the shepherd to examine the animal and he compares this to the expert in coins who stated that he coins are not counterfeit. Thus even though no one asked the shepherd if there were teeth nevertheless, since the others were depending on him to examine the animal, his failure to say anything is considered as if he stated that everything is proper.

Similarly, in your case since the painter was told the correct color and he knew that no one would be inspecting the frames prior to their installation and the door installer also was not aware of the color of the doors, the painter bears full liability for the expense of uninstalling and reinstalling the doorframes.

It is important to stress that the entire reason the painter is liable is the fact that by the nature of the building process he was aware that he would be relied upon. However, often people give advice but warn the one whom they are advising not to rely solely upon their advice. By saying this they are absolving themselves from future liability.

Let us now investigate your friend’s suggestion that this is comparable to a girl who broke her engagement after the groom had spent money as a result of the engagement. First, to clarify, the Rambam (Zechiyo Umatono 6, 24) rules that the one who broke the engagement is liable and that is also the ruling of the Shulchan Aruch (Even Ho’ezer 50, 3). However, the Ra’avad disagrees with the Rambam and brings proof that the girl is not liable for the groom’s expenses. Even though the Shulchan Aruch follows the opinion of the Rambam, nevertheless, there are Poskim (e.g. Aruch Hashulchan 50, 15) who say that it is difficult to make one pay the full amount since the Ra’avad disagrees.

However, your friend is not correct since your case is much more similar to one who showed a coin to an expert. The Mishpat Hamazik (2, 19, 3) explains that the difference is that the coin expert knew that he is being relied upon and that there will be no further checking. However, the girl who agreed to become engaged didn’t guarantee that she will never break the engagement. When she agreed to the engagement she was stating that as things stand now we will get married but she didn’t state more than that.

In conclusion: The painter is liable for the expense of uninstalling the doorframes and their reinstallment.

 

 

 

 

 

 

 

 

 

 

 

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